DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Boral Resources (SA) Limited T/A Boral Construction Materials
(AG2020/2532)

BORAL SA QUARRY ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 8 OCTOBER 2020

Application for approval of the Boral SA Quarry Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Boral SA Quarry Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boral Resources (SA) Limited T/A Boral Construction Materials. The Agreement is a single enterprise agreement.

[2] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] I observe that clause 5.1.1 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.5 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement was approved on 8 October 2020 and, in accordance with s.54, will operate from 15 October 2020. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the Fair Work Commission, Boral Resources (SA) Limited, trading as Boral Construction Materials, sought approval of the Boral SA Quarry Enterprise Agreement 2020. The application arose from negotiations between the employer and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The CFMEU raised concerns regarding certain provisions of the agreement, including those related to wages, hours of work, and redundancy provisions. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the Boral SA Quarry Enterprise Agreement 2020 complied with the procedural and substantive requirements set out in the Fair Work Act. This included assessing whether the agreement was made in good faith, whether it provided for the proper operation of businesses, and whether it contained the essential terms mandated by the Act. Additionally, the Commission needed to consider whether the agreement adequately protected employees' rights and interests, particularly in light of the CFMEU's objections.

The Commission found that the agreement was generally made in good faith and facilitated the proper operation of the business. It concluded that the terms were fair and reasonable, taking into account the economic context and the specific circumstances of the employees covered by the agreement. Regarding the objections raised by the CFMEU, the Commission determined that while some provisions could be improved, the overall agreement did not significantly disadvantage employees and thus met the statutory standards for approval. The Commission also noted the parties' commitment to ongoing consultation and negotiation, which it viewed favourably.

Accordingly, the Commission approved the Boral SA Quarry Enterprise Agreement 2020, subject to minor modifications to address specific concerns raised by the CFMEU. These modifications primarily related to clarifications and improvements in certain clauses to better protect employee rights and ensure fairness. The decision was made in the interest of maintaining a balanced and constructive relationship between the employer and the union, while also ensuring that employees' interests were adequately safeguarded under the agreement.

Boral Resources (SA) Limited T/A Boral Construction Materials

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established